How to Fight a Foreclosure in Court: Judicial Foreclosure

How hard it is to fight a foreclosure depends to a great extent on where you live. If your state requires the foreclosing party to sue you (this is called judicial foreclosure), then it’s easier (and less expensive) to jump into the existing lawsuit. If, in your state, foreclosures proceed without court supervision (nonjudicial foreclosure), then you’ll have to bring your own lawsuit—a more worky and costly process. (To see which procedure is followed in your state, check our Summary of State Foreclosure Laws.)

In judicial foreclosure states, the foreclosing party must bring a lawsuit to get the foreclosure started. You will be notified of the foreclosure lawsuit when papers called a summons and complaint are delivered to (served on) you. They will advise you of the lawsuit and give you a period of time within which you must respond if you choose to contest it.

And, significantly, the foreclosing party will have the burden of proving to the judge that the foreclosure is justified under the terms of the mortgage.

Whether or not you respond is up to you. Either way, the mortgage holder will be required to prove that the foreclosure is legal (although if you don’t respond, the chances are excellent that the foreclosure will go through). The proof will typically consist of a thick bundle of documents containing various papers that you signed when obtaining or refinancing your mortgage. There will also be notices, signed agreements, internal accountings of payments both made and missed, and written statements under oath (called declarations or, if sworn before a notary public, affidavits) from lender and mortgage servicer officials who have knowledge of:

  • your missed payments
  • the lender’s compliance with your state’s laws regarding foreclosure procedures, and
  • the circumstances through which your lender came to own the mortgage.

As a general rule, if you don’t point out errors or omissions in the paperwork, the court will accept the papers as evidence that will support a foreclosure judgment and order for sale.

If you do respond, you will have the opportunity to tell a judge just why you think the papers are wrong and that foreclosure is not warranted. To contest the foreclosure, you can file a very simple form, called an answer in most places. In it, you state your factual and legal arguments for opposing the foreclosure.

If you have evidence of your own regarding these issues, you also can file your own sworn statements. For example, if the lender claims that you missed five payments, but you can prove (typically with canceled checks) that you missed only one, you would submit a statement under oath to that effect and attach your canceled checks.

The court will set a date for a hearing, at which the judge will hear arguments on the paperwork submitted by both sides. I

After the hearing, the judge may:

Decide the case based solely on the paperwork.

Provide more time to the parties. The judge might postpone the hearing for a month or two to give the parties more time to gather more information. For example, if the paperwork filed by the foreclosing party doesn’t show authorization to bring the foreclosure lawsuit, the judge may continue the hearing for a month so that the foreclosing party can bring in additional documentation.

Schedule an evidentiary hearing or trial. If the judge doesn't decide the case on the papers alone, he or she will schedule a trial or evidentiary hearing a month or two later at which the parties will present their cases through live witnesses who can be questioned by the judge and cross-examined by the other side. For example, if there is conflict over missed payments, both you and an official from the mortgage servicer would testify, and the judge would decide which of you is most likely telling the truth. In the vast majority of cases, you won't get a trial by jury. This is because in most states, foreclosure proceedings are considered to be "equitable" in nature, which means you don't have a right to a jury trial. You might be entitled to a jury for certain types of counterclaims or for a deficiency judgment. Although even then you may be out of luck -- many mortgages have a section in which the borrower waives the right to a trial by jury on all matters related to the mortgage or note.

After any additional hearings, the judge will either:

  • order the foreclosure to go ahead (and in many states, set the sale date), or
  • dismiss the case, sending the lender back to the drawing board.

In Vermont or Connecticut, a judge who approves the foreclosure can order ownership (title) to be transferred then and there.

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